Magistrate Joan White, District Court Judge Kim Chaney, and District Court Judge
1
As will be discussed in greater detail below, when Mr. Hester filed his motion for preliminary
injunction, Cullman County followed pretrial procedures different from the procedures in place
as of the date of this opinion. Therefore, the language of Mr. Hester’s motion pertains to the old
version of Cullman County’s pretrial procedures. Two weeks after Mr. Hester filed his motion
for preliminary injunction, Cullman County revised its pretrial procedures. The parties have
conformed their evidence, and the Court conforms its analysis, to Cullman County’s new pretrial
procedures. The Court considers whether Mr. Hester and the proposed plaintiff class have
demonstrated a substantial likelihood of success on their constitutional claims as those claims
pertain to Cullman County’s new pretrial procedures.

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Wells R. Turner III. (Doc. 95). In his first claim for relief, citing the Fourteenth

Amendment, Mr. Hester alleges that the defendants violate the “fundamental

4
By way of example, in February 2018, Cullman County took 159 individuals into custody
pursuant to warrantless arrests, and the county took 61 individuals into custody pursuant to arrest
warrants. (Doc. 143, p. 191).
5
Alabama Code § 15-13-106 states: “Except in capital cases where there is no right to release
on bail, no person or defendant shall be committed to any jail in the State of Alabama on a
warrant unless there is an amount of bail affixed to the warrant. No person or defendant shall
remain in jail anywhere in this state for more than 24 hours for any felony or misdemeanor case
without an order of bail, unless bail is not authorized by law.” Alabama Code § 15-13-108
states: “In all cases of misdemeanors and felonies, unless otherwise specified, the defendant is,
before conviction, entitled to bail as a matter of right. All sheriffs and police chiefs of this state
shall ensure that one of their officers or themselves are available to approve and accept bail 24
hours each day, seven days a week, except during the hours the clerks of the courts provide
personnel for bail acceptance and approval.”

6
In Cullman County, magistrates are court specialists, but they are not lawyers. They are not
members of the Alabama State Bar. (Doc. 136, p. 270). Magistrates make probable cause
determinations on warrantless arrests within 48 hours of arrest. A criminal defendant typically
does not attend a probable cause determination; only the arresting officer attends that proceeding.
(Doc. 136, pp. 269-71).
7
Even if they can afford to post bond, the sheriff cannot immediately release the following
categories of defendants: defendants arrested for failure to appear or on charges that, by statute,
require detention for a period of time; defendants who are intoxicated; defendants who are in
need of medical attention; or defendants who have holds on their detention from other
jurisdictions. (Doc. 129-36, p. 3; Doc. 136, p. 276).
8
Sheriff Gentry testified that he encourages family members of arrestees to post property bonds
because his office can quickly assess the value of the property using the county’s tax records,
and a property bond can be obtained with the payment of a $35 fee. (Doc. 136, pp. 224-226).
Sheriff Gentry explained that his office can use the contact information provided with a property
bond to contact family members if a defendant fails to appear for a hearing. He acknowledged
6
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Cullman County advertises the telephone numbers for bonding companies in its jail

cells. An arrestee may call a bonding company, “work out an agreement . . . on a

set price for that bonding company” to post bond, and secure her release from jail.

(Doc. 136, p. 191). 9

Sheriff Gentry testified that he has two primary interests in the pretrial

process: getting defendants to appear for court proceedings and ensuring the safety

of the community. (Doc. 136, pp. 235-36). Those interests are consistent with

Alabama law. Pursuant to Rule 7.2(a) of the Alabama Rules of Criminal

Procedure, conditions of pretrial release are imposed to “reasonably assure the

defendant’s appearance” at court proceedings and to protect “the public at large”

from “real and present danger.” Ala. R. Crim. P. 7.2.

1. Pre-March 26, 2018

Until March 26, 2018, Cullman County used a bail schedule that identified a

For each individual arrested, Sheriff Gentry set bail based on the crime charged

and then released criminal defendants who could post a secured bond for the bail

that he would have the same ability if a defendant identified a third-party custodian in
conjunction with an unsecured bond. (Doc. 136, pp. 225-28).
9
Cullman County also uses cash bonds and ROR (release on recognizance) bonds. By law, the
sheriff cannot accept cash bonds; only the clerk of court may accept cash bonds. There is no
financial obligation for ROR bonds. The arrestee “just promise[s]” that she will return for court
dates. If she does not appear as promised, then a judge will issue an arrest warrant for the
individual. (Doc. 136, pp. 189-90).

7
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amount and detained criminal defendants who could not afford to post bond. (Doc.

132, p. 2, ¶¶ 7-8).

Cullman County magistrates conducted initial appearances for arrestees who

41, p. 2). The release questionnaire asks the defendant to supply information about

her residence, employment, family situation, health, and criminal history, including

10
Defendants who post bond at the time of their arrest later have to attend an initial appearance.
At that proceeding, a judge informs a defendant of his court date, and the judge may appoint
counsel to represent the defendant if the defendant demonstrates financial need. (Doc. 136, pp.
300-01).
11
Sheriff Gentry testified that he has two court liaisons on his staff. These staff members offer a
release questionnaire and an affidavit of financial hardship to an indigent defendant and, when
necessary, the staff members will help a defendant complete the forms. (Doc. 143, p. 177).

Alabama Rules of Criminal Procedure, the judge must consider releasing the

defendant on the defendant’s own recognizance or on an unsecured appearance

bond unless the judge “determines that such a release will not reasonably assure

the defendant’s appearance as required, or the defendant’s being at large will pose

a real and present danger to the public at large.” (Doc. 122-1, p. 4, ¶ 9; Doc. 136,

pp. 282-83m 286). Rule 7.2(a) states:

(a) BEFORE CONVICTION. Any defendant charged with an offense
bailable as a matter of right may be released pending or during trial on
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his or her personal recognizance or on an appearance bond unless the
court or magistrate determines that such a release will not reasonably
assure the defendant’s appearance as required, or that the defendant’s
being at large will pose a real and present danger to others or to the
public at large. If such a determination is made, the court may impose
the least onerous condition or conditions contained in Rule 7.3(b) that
will reasonably assure the defendant’s appearance or that will
eliminate or minimize the risk of harm to others or to the public at
large. In making such a determination, the court may take into
account the following:

1. The age, background and family ties, relationships and
circumstances of the defendant.

2. The defendant’s reputation, character, and health.

3. The defendant’s prior criminal record, including prior
releases on recognizance or on secured appearance bonds, and
other pending cases.

4. The identity of responsible members of the community who
will vouch for the defendant’s reliability.

5. Violence or lack of violence in the alleged commission of
the offense.

6. The nature of the offense charged, the apparent probability
of conviction, and the likely sentence, insofar as these factors
are relevant to the risk of nonappearance.

11. Residence of the defendant, including consideration of real
property ownership, and length of residence in his or her place
of domicile.

12. In cases where the defendant is charged with a drug
offense, evidence of selling or pusher activity should indicate a
substantial increase in the amount of bond.

13. Consideration of the defendant’s employment status and
history, the location of defendant’s employment, e.g., whether
employed in the county where the alleged offense occurred, and
the defendant’s financial condition.

14. Any enhancement statutes related to the charged offense.

Ala. R. Crim. P. 7.2. The Standing Order requires the judge to consider the

fourteen factors in Rule 7.2(a). (Doc. 129-36, pp. 5-7).

In weighing the factors that bear on a defendant’s eligibility for release, the

judge considers the information that the defendant provided in the release

questionnaire and in the affidavit of substantial hardship, if the defendant

submitted one. (Doc. 136, pp. 277-81). Judge Turner testified that when he is

“considering factors to consider to release” a defendant, it is helpful for him to

know whether a defendant “[is] employed or if they’re not employed” and whether

the defendant is “living where they say they are at that address or is that just where

they get their mail.” (Doc. 136, p. 280). With respect to the address information,

Judge Turner stated: “We have a lot of people that move from place to place

wherever they can find to lay their head. And [] keeping track of them can be

testified that he has never seen a bail request from a law enforcement officer in

12
As will be discussed later in this opinion, law enforcement officers had the option of
submitting bail request forms before Cullman County adopted the March 2018 Standing Order.
The bail request tool is not new, but the Standing Order mandates new procedures concerning
bail request forms.

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conjunction with a warrantless arrest. Judge Turner and Judge Chaney handle all

The legal principle on which the defendants’ mootness argument rests is

sound: events that occur after a plaintiff files a lawsuit may “deprive the court of

14
The bottom of the Order on Initial Appearance and Bond Hearing contains a few blank lines
beside the statement “9. Other:”. (Doc. 129-40, p. 3). If he chose, a judge presumably could
write findings concerning a secured bond in that section of the order.

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the ability to give the plaintiff . . . meaningful relief,” so that the plaintiff’s claims

The majority in Walker v. City of Calhoun described the confluence of equal

protection and due process concepts in the constitutional analysis of pretrial release

procedures:

The Supreme Court synthesized that law in Bearden v. Georgia,
which considered ‘whether the Fourteenth Amendment prohibits a
State from revoking an indigent defendant’s probation for failure to
pay a fine and restitution.” 461 U.S. 660, 661, 103 S.Ct. 2064, 76
L.Ed.2d 221 (1983). The Court explained that ‘[d]ue process and
equal protection principles converge in the Court's analysis’ of cases
where defendants are treated differently by wealth, observing that ‘we
generally analyze the fairness of relations between the criminal
defendant and the State under the Due Process Clause, while we
approach the question whether the State has invidiously denied one
class of defendants a substantial benefit available to another class of
defendants under the Equal Protection Clause.” Id. at 665, 103 S.Ct.
2064.

no such guaranty; Cullman County affords that guaranty only to criminal

defendants who have the financial means to post a bond at the time of arrest in an

amount set in the county’s bail schedule.

Unlike Cullman County, the release process in the City of Calhoun is fairly

simple. First, defendants arrested for a violation of a municipal law are released

immediately on an unsecured bond. 2018 WL 4000252 at *1. Those defendants

are assessed the amount in the bail schedule only if they failed to appear for a court

proceeding. Id. at *2. For defendants charged with a violation of a state law, the

bail schedule lists bail in an amount equal to the fine that defendant later would

16
The rights examined in Pugh and Bearden are quantitatively different because a defendant’s
pretrial rights -- a presumption of innocence and a fundamental right to pretrial liberty -- are
broader that a defendant’s rights following conviction.

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have to pay if she were adjudged guilty of the crime charged. The defendant may

satisfy the bail obligation by paying cash, posting a property or surety bond, or

using a driver’s license as collateral. Id. at *1. At the time of arrest, if a defendant

cannot provide any of these types of security, then a defendant must receive a

hearing before a municipal judge within 48 hours. That hearing has a single

purpose: using a uniform standard of indigency to evaluate evidence of indigency

supplied to the court by a court-appointed attorney, a judge determines whether a

defendant is, in fact, indigent. A defendant who “has other resources that might

reasonably be used” to secure release must provide the security that a judge orders

to obtain release. All defendants adjudged indigent under the city’s uniform

standard are released on a recognizance bond, “meaning no bail amount is set,

either secured or unsecured.” Id. at *1-*2.

Thus, as the Walker majority found, the City of Calhoun releases all indigent

defendants, just as the city releases all defendants who can afford to pay a cash

bond, post a surety or property bond, provide a driver’s license as collateral, or

provide some other form of collateral. The Walker majority found that delay of up

to 48 hours in securing release for indigent defendants was presumptively

constitutional. Id. at *14. The Walker majority held that the indigent in the City of

Calhoun “must merely wait some appropriate amount of time to receive the same

benefit as the more affluent” and that an appropriate period of delay, without more,

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does not offend the Constitution.

Cullman County’s bail process differs significantly from the process in the

City of Calhoun because indigent defendants cannot secure their release merely by

proving that they are indigent according to a uniform standard of indigency.

Instead, within 72 hours of arrest, to obtain pretrial release in Cullman County, an

indigent criminal defendant, without the assistance of counsel, must prove not only

that he is indigent but also that he is not a flight risk or a threat to himself or the

community. If a judge, applying no particular legal standard, decides that a

defendant is indigent but that the defendant is a danger to himself or his

community or a flight risk, then the judge may set bail at a level that the defendant

Turner estimated that the number of pretrial detainees would quadruple. (Doc.

143, pp. 67-68). Judge Turner agreed with counsel for the judicial defendants that

detaining non-indigent arrestees would not be a good thing because doing so would

mean that many more people would suffer the deleterious consequences of pretrial

detention. (Doc. 143, pp. 67-68). 17

17
Judge Turner expressed his desire to learn about bail systems in other jurisdictions and to
replicate systems that work well. Judge Turner is receptive to alternative systems in Cullman
County. (Doc. 143, pp. 148-50).

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Those harmful consequences are significant. Mr. Hester’s unrebutted

evidence shows that deprivation of pretrial liberty takes a high toll on a criminal

defendant, and the negative effects of pretrial incarceration compound each day

that a defendant is detained. Dr. Demuth explained that research literature

Alexander Holsinger found that criminal defendants who eventually are released

after arrest are more likely to fail to appear for court the longer they are detained

19
Dr. Jones analyzed the appearance rates of 1,309 criminal defendants in Colorado and assigned
to each criminal defendant one of four categories of risk for failure to appear. (Doc. 129-10, p.
8).
20
Ms. Booker, Dr. Jones, and Mr. Schnacke assigned 1,122 criminal defendants to one of two
groups: those whose bonds were set by a judge who ordered many unsecured bonds and those
whose bonds were set by judges who ordered many secured bonds. (Doc. 129-11, pp. 6-7). The
researchers compared the pretrial appearance rates of both groups and found no meaningful
statistical difference. (Doc. 129-11, p. 8).

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pretrial. (Doc. 129-12, pp. 11-12).21

And evidence suggests that most defendants released without financial

incentives to appear in court still appear at a very high rate. For example, Judge

Morrison testified that in 2017, in Washington, D.C., where “financial conditions

are almost never used” for pretrial release, 88% of criminal defendants released

individuals were able to secure their release immediately. (Doc. 143, pp. 192,

212). None of those 167 individuals had to prove that they were not a danger to

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the community or a flight risk. With respect to those 167 individuals, Cullman

County did nothing to determine whether conditions other than bond were

necessary to protect the public or to ensure the defendant’s appearance at court

proceedings. Cullman County professes concern for the safety of the citizens in

the community, but the record demonstrates that that concern is illusory or at least

half-hearted in implementation. As Judge Turner stated, if Cullman County were

to assess all arrestees for danger to the community, there would be many more

individuals held pretrial in the Cullman County jail, just as there would be many

additional detentions if Cullman County assessed all arrestees for flight risks. 22

The defendants mention that they are open to making additional changes to

their pretrial bail system, but they contend that “it’s got to come from a state level.

Whatever works for Cullman has got to be the same thing that works for Jefferson

County, for Mobile County, for Escambia County.” (Doc. 143, p. 69). The

proposition is not persuasive. Cullman County did not have to wait for the rest of

the State of Alabama when it revised its pretrial bail procedures two weeks after

Mr. Hester filed his motion for preliminary injunction. And this Court does not
22
If the record suggested that Cullman County had a robust practice of using bail requests forms
pursuant to which law enforcement officers would ask judges to increase the amount of bail for
defendants who the officers believe may be a threat to the community, the record might better
support Cullman County’s professed concern for the safety of the community. The record
contains no such suggestion. Judge Turner explained that the bail request forms were part of
Cullman County’s pretrial system before the county’s chief judge signed the March 2018
Standing Order, and Judge Turner testified that he has never seen a bail request form for a
warrantless arrest. (Doc. 136, p. 275; Doc. 143, p. 143). The defendants offered no evidence to
establish how often law enforcement officers submit bail request forms for warrant arrests.

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have a record before it that would allow it to determine whether the bail systems in

other counties in Alabama suffer from constitutional flaws, such that state-wide

reform is necessary. For purposes of this litigation, the Court is concerned only

with the record concerning Cullman County.

None of the interests that the defendants have identified relating to

Cullman’s County’s secured bail procedures finds support in the current record.

Therefore, Mr. Hester has shown a substantial likelihood of success on the merits

of his claim that Cullman County’s bail procedures violate his right under the

There is a substantial likelihood that Mr. Hester will prove that Cullman

County’s bail procedures violate his constitutional right to substantive and

23
In her dissenting opinion in Walker, Judge Martin explained that she would apply heightened
scrutiny to assess the constitutionality of a bail system that discriminates on the basis of wealth.
2018 WL 4000252 at * 24 (Martin, J. dissenting). Because pretrial liberty is a fundamental right
to which heightened scrutiny applies, were this Court writing on a clean slate, it would apply
heightened scrutiny to assess Cullman County’s bail system under the equal protection/due
process rubric for wealth-based classifications. United States v. Salerno, 481 U.S. 739, 749-50
(1987)(because the “interest in liberty” is “fundamental,” it is a “‘general rule’ of substantive due
process that the government may not detain a person prior to a judgment of guilt in a criminal
trial.”); Reno v. Flores, 507 U.S. 292, 302 (1993) (substantive due process “forbids the
government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is
provided, unless the infringement is narrowly tailored to serve a compelling state interest”)
(citing Salerno, 481 U.S. at 746); Foucha v. Louisiana, 504 U.S. 71, 81 (1992) (describing the
narrowly tailored and least restrictive conditions on pretrial liberty imposed by the Bail Reform
Act as analyzed in Salerno). Because Cullman County’s bail system does not survive rational
basis analysis, it necessarily would not survive heightened scrutiny.

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procedural due process. The substantive right to pretrial liberty may not be

for each potential offense. Id. The county released criminal defendants who paid

the bond amount. Id. The county detained criminal defendants who could not pay

the bond amount. Id.

24
In his complaint, Mr. Hester contends also that the defendants do not “restrict detention to
extremely serious offenses.” (Doc. 95, p. 19, ¶ 85). Mr. Hester has not raised this allegation in
his motion for preliminary injunction. In his motion for preliminary injunction, Mr. Hester has
argued that due process requires defendants to have the assistance of counsel at an initial
appearance under Cullman County’s criminal pretrial procedures. (Doc. 108, pp. 25-26).
Recently, Mr. Hester has asked for the opportunity to present additional briefing on this issue.
(Doc. 156). Because the Court finds that Mr. Hester is entitled to a preliminary injunction for
other reasons, the Court will delay its consideration of Mr. Hester’s right to counsel argument.
25
The Fifth Circuit affirmed the district court’s factual findings. ODonnell, 892 F.3d at 166.
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According to the “Harris County Criminal Courts at Law Rules of Court,”

akin to the Standing Order in this case, criminal defendants who could not pay the

bond amount were supposed to receive a probable cause hearing before a hearing

hearing officer was supposed to determine a criminal defendant’s bail at the

probable cause hearing. Id. at 1092. Like the judges in Cullman County, hearing

officers at the probable cause hearing had the discretion to release criminal

defendants on personal or unsecured bonds, to impose additional conditions of

release, or to raise or lower the secured bond amount listed in the bail schedule. Id.

According to Texas state law, hearing officers had to conduct an individualized

review when setting bail using enumerated factors, including the defendant’s

ability to make bail. Id. at 1086.

Harris County’s actual practices deviated considerably from these rules. The

Fifth Circuit stated:

Despite these formal requirements, the district court found that,
in practice, County procedures were dictated by an unwritten custom
and practice that was marred by gross inefficiencies, did not achieve
any individualized assessment in setting bail, and was incompetent to
do so. The district court noted that the statutorily-mandated probable
cause hearing (where bail is usually set) frequently does not occur
within 24 hours of arrest. The hearings often last seconds, and rarely
more than a few minutes. Arrestees are instructed not to speak, and
are not offered any opportunity to submit evidence of relative ability
to post bond at the scheduled amount.

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The [district] court found that the results of this flawed
procedural framework demonstrate the lack of individualized
assessments when officials set bail. County officials “impose the
scheduled bail amounts on a secured basis about 90 percent of the
time. When [they] do change the bail amount, it is often to conform
the amount to what is in the bail schedule.” The court further found
that, when Pretrial Services recommends release on personal bond,
Hearing Officers reject the suggestion 66% of the time. Because less
than 10% of misdemeanor arrestees are assigned an unsecured
personal bond, some amount of upfront payment is required for
release in the vast majority of cases.

ODonnell, 892 F.3d at 153-54. Moreover, criminal defendants almost never had

counsel at the probable cause hearings, and the county did not provide counsel to

the future court date and committed no further crime. The court’s
review of reams of empirical data suggested the opposite: that “release
on secured financial conditions does not assure better rates of
appearance or of law-abiding conduct before trial compared to release
on unsecured bonds or nonfinancial conditions of supervision.”
Instead, the County’s true purpose was “to achieve pretrial detention
of misdemeanor defendants who are too poor to pay, when those
defendants would promptly be released if they could pay.” In short,
“secured money bail function[ed] as a pretrial detention order” against
the indigent misdemeanor arrestees.

ODonnell, 892 F.3d at 154.

The Fifth Circuit affirmed the district court’s ruling that Harris County

violated indigent criminal defendants’ due process rights by infringing on the

fundamental right to pretrial liberty without constitutionally adequate procedures.

ODonnell, 892 F.3d at 159. The Fifth Circuit stated:

As the district court found, the current procedures are
inadequate—even when applied to our narrower understanding of the
liberty interest at stake. The court’s factual findings (which are not
clearly erroneous) demonstrate that secured bail orders are imposed
almost automatically on indigent arrestees. Far from demonstrating
sensitivity to the indigent misdemeanor defendants’ ability to pay,
Hearing Officers and County Judges almost always set a bail amount
that detains the indigent. In other words, the current procedure does
not sufficiently protect detainees from magistrates imposing bail as an
“instrument of oppression.”

ODonnell, 892 F.3d at 159.

The Fifth Circuit found that the “fundamental source of constitutional

deficiency in the due process and equal protection analyses is the same: [Harris]

County’s mechanical application of the secured bail schedule without regard for

individualized, case-specific reasons for so doing is a sufficient remedy.” Id.

(emphasis in original). And the Fifth Circuit “conclude[d] that the federal due

process right entitles detainees to a hearing within 48 hours” as opposed to the 24

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hour window that the district court required in its injunction. Id.

The Fifth Circuit provided the district court with a draft injunction that

“represent[ed] the sort of modification that would be appropriate” and left the

details to the district court’s discretion. ODonnell, 892 F.3d at 164. Provisions in

the draft injunction most relevant to this case are:

• Harris County is enjoined from imposing prescheduled bail
amounts as a condition of release on arrestees who attest that they
cannot afford such amounts without providing an adequate process
for ensuring that there is individual consideration for each arrestee
of whether another amount or condition provides sufficient
sureties.

• Pretrial Services officers, as County employees and subject to its
policies, must verify an arrestee’s ability to pay a prescheduled
financial condition of release by an affidavit, and must explain to
arrestees the nature and significance of the verification process.

• The purpose of the explanation is to provide the notice due process
requires that a misdemeanor defendant’s state constitutional right
to be bailable by sufficient sureties is at stake in the proceedings. . .

• The affidavit must give the misdemeanor arrestee sufficient
opportunity to declare under penalty of perjury, after the
significance of the information has been explained, the maximum
amount of financial security the arrestee would be able to post or
pay up front within 24 hours of arrest. The affidavit should ask the
arrestee to provide details about their financial situation . . . . The
question is neither the arrestee’s immediate ability to pay with cash
on hand, nor what assets the arrestee could eventually produce
after a period of pretrial detention. The question is what amount
the arrestee could reasonably pay within 24 hours of his or her
arrest, from any source, including the contributions of family and
friends.

• Misdemeanor defendants who are [eligible to secure their release
by paying secured bond are] entitled to a hearing within 48 hours
of arrest in which an impartial decision-maker conducts an
individual assessment of whether another amount of bail or other
condition provides sufficient sureties. At the hearing, the arrestee
must have an opportunity to describe evidence in his or her favor,
and to respond to evidence described or presented by law
enforcement. If the decision-maker declines to lower bail from the
prescheduled amount to an amount the arrestee is able to pay, then
the decisionmaker must provide written factual findings or factual
findings on the record explaining the reason for the decision, and
the County must provide the arrestee with a formal adversarial bail
review hearing before a County Judge. The Harris County Sheriff
is therefore authorized to decline to enforce orders requiring
payment of prescheduled bail amounts as a condition of release for
said defendants if the orders are not accompanied by a record
showing that the required individual assessment was made and an
opportunity for formal review was provided. . . .

ODonnell, 892 F.3d at 164-66.

There is no meaningful difference between the bail procedures in this case

and the procedures in ODonnell; both are equally arbitrary. Like Harris County

schedule to detain the poor and release the wealthy. Like Harris County, Cullman

County argues that its written “individualized” release procedures protect indigent

defendants’ due process rights. And like Harris County, Cullman County’s actual

procedures are significantly less individualized and protective than due process

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requires.26

The following procedural deficiencies in Cullman County’s bail procedures

create a substantial likelihood of success for the plaintiffs on their due process

claim.

• Absence of adequate notice

The defendants do not provide constitutionally adequate notice to indigent

criminal defendants before an initial appearance. “[N]otice is essential to afford

the prisoner an opportunity to challenge the contemplated action and to understand

26
Recent developments in other jurisdictions support Mr. Hester’s due process claim. Notably,
the U.S. District Court for the Eastern District of Louisiana recently found that each of the
procedural deficiencies alleged by Mr. Hester violates due process at an initial appearance where
a defendant is at risk of a de facto detention order because of her indigency. Caliste v. Cantrell, -
-- F. Supp. 3d ---, 2018 WL 3727768, at *12 (E.D. La. Aug. 6, 2018). In addition, the governor
of California recently signed into law the California Money Bail Reform Act, 2018 Cal. Legis.
Serv. Ch. 244 (S.B. 10) (effective date October 1, 2019). The Act appears to eliminate money
bail and provide all of the procedural safeguards that Mr. Hester argues the Due Process Clause
demands Cullman County to provide at an initial appearance.
Generally, pursuant to the California Money Bail Reform Act, pretrial risk assessment services
determine whether an individual booked on a charge other than a misdemeanor is “low risk,”
“medium risk,” or “high risk” of failure to appear or danger to the public. S.B. 10, §§ 1320.7(a)-
(c), 1320.9. Pretrial risk assessment services release low risk defendants on their own
recognizance without a hearing. S.B. 10, § 1320.10(b). Pretrial risk assessment services may
release medium risk defendants on their own recognizance without a hearing or recommend an
arraignment hearing. S.B. 10, § 1320.10(c). The court conducts an arraignment hearing for any
detained defendant. S.B. 10, § 1320.15. “At arraignment, the court shall order a defendant
released on his or her own recognizance or supervised own recognizance with the least restrictive
nonmonetary condition . . . that will reasonably assure public safety and the defendant’s return to
court unless the prosecution files a motion for preventive detention.” S.B. 10, § 1320.17. The
court must conduct a hearing on the motion for preventive detention at which the defendant has
the right to court-appointed counsel. S.B. 10, § 1320.19(d). The defendant must have the
opportunity to be heard and present evidence. S.B. 10, § 1320.20(c). The court may order
detention only if the court determines by clear and convincing evidence that no nonmonetary
condition of release will reasonably assure public safety and court appearance and must state its
reasons on the record. S.B. 10, § 1320.20(d)(1). Otherwise, the court must release the defendant
on her own or supervised recognizance. S.B. 10, § 1320.20(e)(1).

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the nature of what is happening to him.” Vitek v. Jones, 445 U.S. 480, 496 (1980)

(citing Wolff v. McDonnell, 418 U.S. 539, 564 (1974)). The notice must be

tailored, “in light of the decision to be made, to ‘the capacities and circumstances

of those who are to be heard,’ to insure that they are given a meaningful

Turner stated that the circuit court’s resources already are taxed to handle the 72-

hour initial appearances, the county has no government-funded pretrial services

staff, and the county needs one more judge just to keep up with the circuit court’s

current case load. (Doc. 143, pp. 51-53). According to Sheriff Gentry, funding for

the sheriff’s department has not increased since 2009. (Doc. 136, p. 254).

But alternative pretrial detention policies are cost effective. Three options

are readily available to Cullman County at little or no cost. First, Cullman County

could release all defendants on unsecured bond. In a case in which a defendant

may pose a significant flight risk or a danger to the community, a judge could hold

an initial hearing within 48 hours of arrest and, if necessary based on the evidence

collected at the hearing, impose additional conditions for release such as a court-

27
Mr. Hester has not urged the defendants to detain every arrestee until an initial appearance.
Cullman County has offered no reason why it could not, at a minimum, use unsecured bond for
non-violent arrestees. As noted, individuals released on unsecured bond would have “skin in the
game,” and unsecured bond would enable Sheriff Gentry to release all non-violent arrestees, not
just wealthy arrestees, more quickly.

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appointed third-party custodian or a requirement that the defendant periodically

call one of the sheriff’s court liaisons. The defendants acknowledge that an